S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4754
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 10, 2021
                                ___________
 
 Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
   printed to be committed to the Committee on Agriculture
 
 AN ACT to amend the agriculture and markets law, in relation to enacting
   the New York state excess food act; and to  amend  the  state  finance
   law, in relation to establishing the New York state excess food fund

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as the  "New  York
 state excess food act".
   § 2. The article heading of article 4-D of the agriculture and markets
 law,  as  amended by chapter 869 of the laws of 1980, is amended to read
 as follows:
          [LIABILITY FOR CANNED, PERISHABLE FOOD OR FARM PRODUCTS
          DISTRIBUTED] DISTRIBUTION OF EXCESS FOOD FREE OF CHARGE
   § 3. Section 71-y of the agriculture and markets law,  as  amended  by
 chapter  869  of the laws of 1980, subdivision 1 as amended and subdivi-
 sion 7 as added by chapter 438 of the laws of  2010,  subdivision  5  as
 added  by chapter 286 of the laws of 1984, and subdivision 6 as added by
 chapter 182 of the laws of 1993, is amended to read as follows:
   § 71-y. Definitions. As used in this article:  1.  "Perishable  foods"
 means  any  food  that  may  spoil  or  otherwise become unfit for human
 consumption because of its nature, type or physical condition.   Perish-
 able  food  includes,  but  is not limited to, fresh or processed meats,
 poultry, seafood, dairy products, bakery products, eggs  in  the  shell,
 fresh  fruits or vegetables and foods that have been packaged, refriger-
 ated or frozen, or otherwise require refrigeration to remain  nonperish-
 able. This definition shall not include game or wild game.
   2.  "Canned  foods"  means  any canned food that has been hermetically
 sealed and commercially processed and prepared  for  human  consumption,
 including  canned  or  preserved fruits, vegetables or other articles of
 food. There is specifically excluded  for  purposes  of  this  [section]
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00515-02-1

 S. 4754                             2
 
 SUBDIVISION  DAMAGED  canned goods [that are rusted, leaking, swollen or
 canned goods that are defective or cannot be otherwise offered for  sale
 to members of the general public], AS DEFINED IN SUBDIVISION SIX OF THIS
 SECTION.
   3.  "Farm  products"  means  any  agricultural, dairy or horticultural
 product or any product designed or intended  for  human  consumption  or
 prepared  principally from an agricultural, dairy or horticultural prod-
 uct.
   4. "CONSUMABLE" MEANS FIT FOR HUMAN  CONSUMPTION  NOTWITHSTANDING  ANY
 DAMAGE  TO  PACKAGING OR TEMPORAL PROXIMITY TO A USED BY OR SELL BY DATE
 AFFIXED TO THE ITEM BUT SHALL NOT INCLUDE DAMAGED CANNED GOODS.
   5. "NON-CONSUMABLE" MEANS UNFIT FOR HUMAN CONSUMPTION BECAUSE OF SPOI-
 LAGE, ADULTERATION, CONTAMINATION, OR REASONABLE LIKELIHOOD IT WOULD  BE
 HARMFUL  TO  HUMAN  HEALTH.  THIS  TERM  SHALL  NOT INCLUDE FOOD OR FARM
 PRODUCTS NOT READILY MARKETABLE DUE  TO  APPEARANCE,  FRESHNESS,  GRADE,
 SURPLUS,  OR  PARTIAL  UNFITNESS  FOR  HUMAN CONSUMPTION IF THE SPOILED,
 ADULTERATED, OR CONTAMINATED PORTION OF SUCH FOOD PRODUCT CAN BE  SAFELY
 REMOVED  AND  THE  REMAINING  FOOD PRODUCT CAN BE UTILIZED FOR PROCESSED
 HUMAN FOOD OR ANIMAL FEED.
   6. "DAMAGED CANNED GOODS" MEANS ANY  CANNED  GOODS  THAT  ARE  RUSTED,
 LEAKING, SWOLLEN, OR PUNCTURED.
   7.  "ORGANIC  WASTE"  MEANS ANY NON-CONSUMABLE FOOD OR FARM PRODUCT IN
 WHOLE OR IN PART INCLUDING THE CONTENTS OF  DAMAGED  CANNED  GOODS.  THE
 TERM  SHALL ALSO INCLUDE ANY MATERIAL FOUND IN THE WASTE STREAM THAT CAN
 BE BROKEN DOWN INTO, OR OTHERWISE BECOME PART OF, USABLE  COMPOST,  SUCH
 AS  FOOD SCRAPS, SOILED PAPER, AND PLANT TRIMMINGS. AS DETERMINED BY THE
 COMMISSIONER, SUCH TERM MAY ALSO INCLUDE DISPOSABLE PLASTIC FOOD SERVICE
 WARE AND BAGS THAT MEET THE ASTM INTERNATIONAL  STANDARD  SPECIFICATIONS
 FOR COMPOSTABLE PLASTICS, BUT SHALL NOT INCLUDE LIQUIDS AND TEXTILES.
   8.  "TOXIC  ORGANIC  WASTE"  MEANS ORGANIC WASTE THAT HAS A REASONABLE
 LIKELIHOOD OF  CAUSING  SERIOUS  ILLNESS  IN  HUMANS  OR  ANIMALS  AFTER
 COMPOSTING BECAUSE OF CONTAMINATION OR ADULTERATION.
   9. "COVERED RETAIL ESTABLISHMENT" MEANS ANY LOCATION AT WHICH A RETAIL
 FOOD STORE HAS A FLOOR AREA OF AT LEAST TEN THOUSAND SQUARE FEET, OR ANY
 RETAIL  FOOD  STORE THAT IS PART OF A CHAIN OF THREE OR MORE RETAIL FOOD
 STORES THAT HAVE A COMBINED FLOOR AREA SPACE OF AT  LEAST  TEN  THOUSAND
 SQUARE  FEET  AND  THAT  OPERATE  UNDER  COMMON OWNERSHIP OR CONTROL AND
 RECEIVE WASTE COLLECTION FROM THE SAME ENTITY.
   10. "Charitable or  nonprofit  organization"  means  any  organization
 which  is  exempt from federal or state income taxation, except that the
 term does not include organizations which sell or  offer  to  sell  such
 donated items of food.
   [5.]  11.  "Organized  gleaning"  means the harvest of an agricultural
 crop that has been donated by an owner, lessee, or occupant of  premises
 or  occupant of a farm by persons who are sponsored by a charitable not-
 for-profit organization.
   [6.] 12. "Game or wild game" means any deer or big game,  or  portions
 thereof, as defined in section 11-0103 of the environmental conservation
 law, taken by lawful hunting.
   [7.] 13. "Public food service establishment" means any building, vehi-
 cle, place or structure, or any room or division in a building, vehicle,
 place  or structure where food is prepared, served or sold for immediate
 consumption on or in the vicinity of the premises; called for  or  taken
 out  by  customers;  or  prepared  prior  to  being delivered to another
 location for consumption.

 S. 4754                             3
 
   § 4. Section 71-z of the agriculture and  markets  law,  as  added  by
 chapter 869 of the laws of 1980, subdivision 1 as amended by chapter 438
 of  the  laws  of  2010 and subdivision 3 as added by chapter 286 of the
 laws of 1984, is amended to read as follows:
   § 71-z. Liability   for  canned,  perishable  food  or  farm  products
 distributed free of charge. 1. Notwithstanding any  other  provision  of
 law,  a  good-faith donor of any APPARENTLY CONSUMABLE canned or perish-
 able food, farm product, game or wild game, [apparently  fit  for  human
 consumption,]  to  a bona fide charitable or nonprofit organization, for
 free distribution, shall not be subject to  criminal  penalty  or  civil
 damages  arising  from  the  condition  of  the  food, if the said donor
 reasonably inspects the food at the time of donation and finds the  food
 apparently  [fit  for human consumption] CONSUMABLE and unless the donor
 has actual or constructive  knowledge  that  the  food  is  adulterated,
 tainted,  contaminated  or  harmful  to  the health or well-being of the
 person consuming said food. Such good-faith donor shall include, but not
 be limited to, public food service  establishments  AND  COVERED  RETAIL
 ESTABLISHMENTS  AS DEFINED BY SUDIVISIONS THIRTEEN AND NINE, RESPECTIVE-
 LY, OF SECTION SEVENTY-ONE-Y OF THIS ARTICLE.
   2. [This section includes the good faith donation of canned or perish-
 able food or farm products not readily  marketable  due  to  appearance,
 freshness,  grade,  surplus  or  other  considerations, but shall not be
 deemed or construed to restrict the authority of any  lawful  agency  to
 otherwise regulate or ban the use of such food for human consumption.
   3.]  A  not-for-profit charitable organization shall provide liability
 insurance to persons engaged in gleaning activities organized  or  spon-
 sored by such charitable organization.
   §  5.  Article  4-D  of  the agriculture and markets law is amended by
 adding four new sections 71-aa,  71-bb,  71-cc  and  71-dd  to  read  as
 follows:
   §  71-AA. REQUIRED DONATION. 1. EVERY COVERED RETAIL ESTABLISHMENT, AS
 DEFINED IN SECTION SEVENTY-ONE-Y OF THIS ARTICLE, SHALL CONTRACT WITH  A
 CHARITABLE OR NONPROFIT ORGANIZATION AS DEFINED IN SECTION SEVENTY-ONE-Y
 OF  THIS  ARTICLE  TO  ENSURE  THE GOOD FAITH DONATION OF ALL APPARENTLY
 CONSUMABLE FARM AND FOOD PRODUCTS.
   2. THE WILFUL OR WANTON FAILURE TO DONATE  CONSUMABLE  FARM  AND  FOOD
 PRODUCTS SHALL BE PUNISHABLE BY A FINE OF UP TO FOUR THOUSAND DOLLARS.
   3.  ANY  FUNDS  COLLECTED  PURSUANT TO SUBDIVISION TWO OF THIS SECTION
 SHALL BE DEPOSITED IN THE NEW YORK STATE EXCESS  FOOD  FUND  ESTABLISHED
 PURSUANT TO SECTION NINETY-SEVEN-ZZZZ OF THE STATE FINANCE LAW AND SHALL
 BE  USED  FOR  ADMINISTRATIVE AND ENFORCEMENT COSTS ASSOCIATED WITH THIS
 ARTICLE.
   § 71-BB. INTENTIONAL SPOILAGE PROHIBITED. 1. IT SHALL BE UNLAWFUL  FOR
 ANY  FOOD  SERVICE  ESTABLISHMENT OR RETAIL FOOD SELLER TO INTENTIONALLY
 CONTAMINATE, SPOIL OR CAUSE TO SPOIL A FARM OR FOOD PRODUCT  THAT  WOULD
 OTHERWISE BE CONSUMABLE.
   2. THE INTENTIONAL SPOILAGE OF A FARM OR FOOD PRODUCT SHALL BE PUNISH-
 ABLE BY A FINE OF UP TO FOUR THOUSAND DOLLARS.
   3.  ANY  FUNDS  COLLECTED  PURSUANT TO SUBDIVISION TWO OF THIS SECTION
 SHALL BE DEPOSITED IN THE NEW YORK STATE EXCESS  FOOD  FUND  ESTABLISHED
 PURSUANT TO SECTION NINETY-SEVEN-ZZZZ OF THE STATE FINANCE LAW AND SHALL
 BE  USED  FOR  ADMINISTRATIVE AND ENFORCEMENT COSTS ASSOCIATED WITH THIS
 ARTICLE.
   § 71-CC. ORGANIC WASTE. EVERY COVERED RETAIL ESTABLISHMENT, AS DEFINED
 IN SECTION SEVENTY-ONE-Y OF THIS ARTICLE SHALL  CONTRACT  WITH  A  WASTE
 COLLECTION  ENTITY,  OR  THROUGH  ITS  OWN  FACILITY,  PROVIDE  FOR  THE

 S. 4754                             4
 
 COLLECTION OF ALL NON-TOXIC ORGANIC WASTE GENERATED BY  SUCH  ESTABLISH-
 MENT, INCLUDING DAMAGED CANNED GOODS AND FOOD THAT HAS SPOILED OR IS NOT
 SUITABLE  FOR  HUMAN  CONSUMPTION,  FOR  COMPOSTING THROUGH ANAEROBIC OR
 AEROBIC DIGESTION.
   §  71-DD. ADMINISTRATION. ALL FINES COLLECTED PURSUANT TO THIS ARTICLE
 SHALL GO INTO THE NEW YORK EXCESS  FOOD  FUND  ESTABLISHED  PURSUANT  TO
 SECTION  NINETY-SEVEN-ZZZZ  OF  THE STATE FINANCE LAW TO BE USED FOR THE
 ADMINISTRATIVE AND ENFORCEMENT COSTS ASSOCIATED WITH THIS ARTICLE.
   § 6. The state finance law is amended by adding a new section  97-zzzz
 to read as follows:
   §  97-ZZZZ. NEW YORK STATE EXCESS FOOD FUND. 1. THERE IS HEREBY ESTAB-
 LISHED IN THE JOINT CUSTODY  OF  THE  COMMISSIONER  OF  AGRICULTURE  AND
 MARKETS  AND  THE  COMPTROLLER A FUND TO BE KNOWN AS THE "NEW YORK STATE
 EXCESS FOOD FUND".
   2. THE FUND SHALL CONSIST OF ALL MONIES APPROPRIATED FOR ITS  PURPOSE,
 ALL  MONIES REQUIRED BY THIS SECTION OR ANY OTHER PROVISION OF LAW TO BE
 PAID INTO OR CREDITED TO SUCH FUND. WHENEVER  A  LAWSUIT  RESULTS  IN  A
 CIVIL  JUDGMENT  FOR EXPENSES ALREADY PAID FOR BY THE FUND, THAT PORTION
 OF THE CIVIL JUDGMENT SHALL BE PAID INTO THE FUND. NOTHING CONTAINED  IN
 THIS SUBDIVISION SHALL PREVENT THE DEPARTMENT OF AGRICULTURE AND MARKETS
 FROM RECEIVING GRANTS, GIFTS OR BEQUESTS FOR THE PURPOSES OF THE FUND AS
 DEFINED  IN  THIS SECTION AND DEPOSITING THEM INTO THE FUND ACCORDING TO
 LAW.
   3. MONIES OF THE FUND, WHEN ALLOCATED, SHALL BE AVAILABLE PURSUANT  TO
 SECTION SEVENTY-ONE-DD OF THE AGRICULTURE AND MARKETS LAW.
   4.  MONIES  SHALL BE PAYABLE FROM THE FUND ON THE AUDIT AND WARRANT OF
 THE STATE COMPTROLLER ON VOUCHERS APPROVED AND CERTIFIED BY THE  COMMIS-
 SIONER OF AGRICULTURE AND MARKETS FOR APPLICATION TOWARD THE ADMINISTRA-
 TIVE  AND  ENFORCEMENT COSTS ASSOCIATED WITH ARTICLE FOUR-D OF THE AGRI-
 CULTURE AND MARKETS LAW.
   § 7. This act shall take effect on the one hundred twentieth day after
 it shall have become a law. Effective immediately, the addition,  amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation  of  this act on its effective date are authorized to be made and
 completed on or before such effective date.